JOHHSON V. EBBERTS.
rights acquired in mining claims. It would be strange indeed if congress should pass laws to encourage trespasses and breaches of the peace,"by authorizing a title to be initiated and founded upon a trespass upon the actual possession of another. Upon the whole record I am entirely satisfied _that a new trial should not be granted, even if there was error in admitting the affidavit of Smith, and the several other affidavits to which exception was taken in the course of the trial, on the question of citizenship. On this view, also, errors in other rulings, if any there be. become immaterial. Ordered that a new trial be denied.
See 1 FED. REP. 522.
JOHNSON V. EBBERTS.
(Circuit Oourt, D. Oregon. October 25, 1880.)
No one has the right to cause the arrest of another as an experiment, fo, the purpose of finding out who committed a particular offence, and a.n arrest nnll!'r such circumstances is malicious.
The, malice necessary to sustain an action for malicious arrest is not expresll malice, 01' a specific desire to vex or injure another from malevolence or motives of ill will, but the wilful doing of an unlawful act to the prejudice or injury of another.
John H. Read, for plaintiff. Rufus Mallory, for defendant. DEADY, D. J. On October 9, 1879, the plaintiff, upon the complaint and affidavit of the defendant, was arrested at Pendleton upon the charge of uttering a forged note upon the defendant, dated March 1, 1879, for $250, payable 12 months after date, to J. A. Peek, or order, and by the latter indorsed in blank, and taken thence to Junction, and there, after an examination before a magistrate, duly discharged. This action is brought to recover damages for this alleged malicious prosecution of the plaintiff by the defendant. On the trial the jury gave a verdict for the defendant, which the plaintiff now moves to set aside. The complaint alleged that the prosecution was withv.1l,no.2-9
out probable ca.use and malicious, but this was denied by the answer; ana these were the questions submitted to the jury. Malice is not to be presumed from the want of probable cause, but the jury must find the malice as a substantial fact in the case. Wheeler v. Nesbitt, 24 How. 551; Stewart v. Sgnnenborn, 98 U. S. 191; Levy v. Brannan, 39 Cal. 488. But the want of probable cause is evidence of malice, and, in cases where there is no evidence to the contrary, is sufficient to justify a verdict for the plaintiff. Where the facts are undisputed the question of probable' causs is simply one of law, for the court; bd where this is not so, the court must instruct the jury hypothetically as to what is or is not probable cause, and the latter must apply the instructions to the facts found by them and give a verdict accordingly. But the facts in this case, upon any view of them, do not, in my judgment, constitute probable cause for the arrest of the plaintiff. Peek, the party who indorsed the note to the plaintiff, was the defendant's nephew, and not a person of good standing at Eugene, the place where he lived. He indorsed the note to the plaintiff, who was a comparative stranger to him and the neighborhood, for the right to make and vend a patent washer in the county of Lane. The plaintiff, may have known or had reason to suspect that the note was forged, but his conduct in every particular, save probably one, indicated the contrary. The note, being underdue, was not presented to the defendant for payment, but assuming that the plaintiff was informed by the Osbornes, as they testify and he denies, that E'bberts had told them the note was not genuine, I think it a singular circumstance that the plaintiff did not go to the defendant and make some inquiry of him concerning the matter. Finally, the defendant had Peek arrested for the forgery, who, upon the examination before the magistrate, was discharged; but afterwards, and subsequent to the arrest and discharge of the plaintiff, he was indicted for the offence, and convicted upon the plea of guilty. ' When the defendant caused the arrest ,of the plaintiff he had no information tending to make it appear that he had been guilty of any crime in relation to the note, except the unverified statement of Peek that the note was forged at Roseburg, and the plaintiff had a hand in it, and that he, Peek, had only indorsed it. But this statement ought not to have been believed or acted upon, because: (1) Peek was not generally, nor in the estimation of the defendant, a reliable person-he had just charged him upon oath with the forgery of this same note; (2) he was confessedly a party to the forgery; and (3) it
was apparent from the face of the note, and the date of the conversation between the defendant and the Osbornes, that the, note was made some weeks before the plaintiff went to Roseburg. The plaintiff testified that the reason he had the defendant arrested was, "he had my note and I wanted to know how he got it." But nq one has a right to cause the arrest of another as an experiment, for the purpose of finding out who committed a particular crime. This is trifling with the liberty and good name of another, which the law does not justify or excuse. But it must appear that the arrest was malicious, as well as without probable cause, before the defendant can be held responsible in damages. It is not claimed that there is any direct evidence of malice, but only that it is sufficiently shown by the circumstances of the case. The malice necessary to sustain this action is not express malice, a specific desire to vex or injure another from malevolence or motives of ill-will, but the wilful doing of an unlawful act to the prejudice or injury of another. Frowman v. Smith, 12 Am. Dec. 268. 'fried by this standard I think the weight of evidence in this case is that this prosecution was malicious-was purposely wrong and without justifiable cause. The jury, in coming to a contrary conclusion, must have misunderstood the charge of the court upon this point, or have been misled by the eloquent appeal of the counsel for the defendant upon the relative merits of patent-right peddlers and farmers. This may not be a case for exemplary damages, for admitting, as we must, the plaintiff's innocence, yet to his indiscretion in the purchase and attempted disposition of this note may be attributed in some measure the suspicions which led to his arrest. 'But, nevertheless, the defendant having, without sufficient cause and in wilful disregard of the plaintiff's rights, caused his arrest for the purpose of finding out who forged this note-thus experimenting with his liberty and good name-ought not to be absolved from all the consequences of his mistake or misconduct. The motion for a new trial is allowed, with costs to abide the event of the action.
(Oircuit Oourt, D. Iowa, O. D. January 18,1882.)
NEW TRIAL-VERDICT, WHEN SET ASIDE.
Where, in an action for the possession of lands, the plaintiff showed a clear paper title, and the defendant's patent was shown to establish only color of title; and any question as to the priority of the plaintiff's patent could be established by further proofs; and the verdict of the jury was general, and was proLahly influenced by their sympathy, growing out of the fact that the pa,tentee under whom the defendant claimed was in some way connected, as heir or otherwise, with a soldier who fought in the revolution-a new trial was granted.
Brown cf: Campbell and W. S. Clark, for plaintiff. Parsons d; Runnells, for defendant. LOVE, D. J. In this case the plaintiff exhibited a clear legal title to the land in controversy. There could be no reasonable doubt of the priority of his patent; yet the defendant stoutly contested the plaintiff's paper title, and very possibly induced the jury to believe that the defendant's patent was entitled to priority. If the jury did so believe and find, the plaintiff is clearly entitled to a new trial on that ground alone. If the defendant had conceded the plaintiff's patent title and taken the verdict of the jury upon the question of adverse possession alone-a question eminently fit for the jury to decide-the court would feel disinclined to interfere with the verdict. But the defendant, having assailed the plaintiff's title and stoutly contended for the superiority of his own patent, and the jury having found a general verdict, it is impossible to say that the jury did not find against the validity of the plaintiff's patent, and give their verdict upon that ground. Under such circumstances, I think, the court ought not to give the defendant a judgment upon the verdict. The plaintiff ought not to lose a clear title to the land by a single verdict founded possibly upon a clearly erroneous view by the jury of the plaintiff's paper title, more especially where the losing party has no appeal. It seems to the court that any question as to the priority of the plaintiff's patent could be removed by further proofs, and the jury be left in a future trial to pass upon the sale question of the defendant's rights under the statute of limitations; the defendant's patent being shown to establish color of title. Alone it could certainly be established beyond question that the plaintiff's patent was first issued and recorded. This would take out of the case a matter which may have influenced